What's the Difference Between a Public Domain Painting and its Image?

Or, is The Mona Lisa Up for Grabs?

Copyright. The Internet. In the tangle of opinions over who can use what with or without permission, even the use of public domain paintings is not as uncontroversial or legally backed as might be commonly believed.

As writers and readers of art-related material, I think it's worth knowing what the situation with public domain works of fine art is, in order that we can contribute to the debate, and perhaps have some influence on how the law might develop over the coming years.

Finding Mona Lisa

If you type "Mona Lisa" into the search box on Wikimedia Commons, you'll have dozens of files of The Mona Lisa, and derivative works, come up. You won't find the version to the right, as it's an in-copyright work of art by Hubber and talented stickman artist Mark Ewbie. (It's used here with legally rigorous permission from Mark, and may not be lifted without his further permission). But there's a reason why this charming alternative is here, and why it would be inappropriate to use Leonardo da Vinci's original to illustrate this article, if we're to give this debate justice.

The very fact that The Mona Lisa and other famous and not-so-famous historical works of art are on Wiki Commons suggests on the face of it, that these downloadable pictures are in the public domain and you can use them as you wish. However, unfortunately for those of us who like to write about fine art, or use it as illustrations, the truth is that Wikimedia has only taken a "position" that they are free to use, and is also relying on the integrity and "position" of the up-loaders. There are plenty of people and organisations who take a different "position", and that is that downloading and then using the files in your own piece of work is theft of copyright. How so, if the paintings are in the public domain?

Paintings in the Public Domain

First, a quick recap on the paintings themselves. A painting itself can be safely considered totally in the public domain, according to all copyright laws worldwide, if the artist has been dead for a hundred years. (Many countries only have a copyright period of 70 years, but 100 years covers every eventuality, whatever corner of the world your online journalism, with its illustrations, is being read).

The Mona Lisa of course is safely out of copyright, as Leonardo da Vinci died way back in 1519. But it's worth mentioning actually, that even some very old paintings are not yet fully in the public domain. For instance, Edgar Degas, the drawer in pastels of those lovely ballet dancers, painted a self-portrait in 1863, as a young man. He lived another 62 years, dying in 1917. As his work won't be internationally out of copyright until 2017, then the 1863 portrait, at 147 years old still isn't out of copyright either.

But if a painting is in the public domain - meaning that it could be reproduced by anyone without needing permission - then why is there a question over being able to use them legally on the internet?

When is a Painting Not a Painting?

The complication arises because we are not directly using public domain works of art. A picture of a painting, is not a painting. The latter generally hangs on walls in a frame, and has its own physicality, and the former is a 2D image or an electronic file. When we upload an image onto our blog, article or website, we are using photographs of public domain works of art, and this is the root of the divided opinions concerning copyright. Photographs, of course, have their own copyright claims. It is against many countries' (including the UK's) copyright law to use them in online articles, or your blog or website, without permission, if the person who took the photograph has not been dead themselves for up to one hundred years.

It might seem ridiculous, or it might not depending on where you are coming from, that photographs of works of art have their own copyright.

I first came across this issue while working on a fine art documentary for the American PBS channel WGBH Boston. It was in the time before copyright debate was broadened by the arrival of the internet. I've written about it in Photographs of Fine Art Paintings - Do They Have Their Own Value? - it was this experience that made me hesitate about whether using public domain works of art from "free" images found on the internet was as strictly "okay" as might be presumed.

Bridgeman vs Corel

However, the assertion that images of the paintings have their own inherent legal protection was challenged successfully in the New York courts in 1999. In a case between The Bridgeman Art Library and Corel, an organisation who created a CD-ROM compilation of masterpieces, it was ruled that a photograph of a painting is not sufficiently "original" to warrant its own copyright. But the ruling has limited jurisdiction. In my attempts to understand US copyright law, and pending clarification brought by any future court cases, the ruling can be taken as applying to the USA as a whole, but it is by no means international, and the internet is an international publication. This is why you'll also see, in addition to Wiki Commons taking a "position" that the reproductions can be used, that they add a disclaimer at the bottom of their pages regarding the situation in other regions.

Statement from Wikimedia Commons pages regarding public domain works of art:

'This is a faithful photographic reproduction of an original two-dimensional work of art. The work of art itself is in the public domain ... The official position taken by the Wikimedia Foundation is that "faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain".'

Disclaimer from Wikimedia Commons on same pages:

'Please be aware that depending on local laws, re-use of this content may be prohibited or restricted in your jurisdiction. See Commons:Reuse of PD-Art photographs.'

Wikimedia's initial statement above sounds great, but it's not the whole story. Their disclaimer hints at cracks in how easy it is to stay completely legal when using these images. The further you follow through, the clearer it becomes that there is very little official concurrence on the overall position of these images.

If you follow the link mentioned in Wikimedia's disclaimer, Commons:Reuse_of_PD-Art_photographs, I'm afraid it is nightmare material for anyone, particularly Europeans, who want to stay on the right side of the law and have reason to want to use public domain fine art images for free. It's a system of red crosses or green ticks for different countries' laws, and you have to read beyond each green tick too, because there are often caveats to what they actually mean, and how available those images are. It makes it very clear what is at stake and that image rights holders do have a basis on which to sue, whatever Wikimedia's own policies may be.

There's another link from the Wikimedia Commons pages that is worth following through and is recommended reading if you want to get on top of these issues, and decide whether Wikimedia's position is the same as yours. If you follow through to Commons: When to use the PD-Art tag, you'll find there's a lot of stuff that a non-legal head has to concentrate hard on to get your head around. But the upshot of it is that Wikimedia is indeed taking a position on public domain images that galleries, and more especially laws, particularly outside the States, do not necessarily agree with. Galleries aren't rushing to challenge copyright infringement from online use in the courts - there seems a certain amount of reluctance to, both financially and with regard to what the consequences might be - and in the meantime Wikimedia Commons is keeping its head somewhat provocatively about the parapet.

A Picture Library's "Position"

Even the New York-based picture library Art Resource - in the same jurisdiction as the Bridgeman vs Corel decision - has this to say, from its copyright information page:

From Art Resource's statement on copyright

'Photographs and other images are protected under the laws of copyright, and the creators as copyright owners have absolute rights to control the use of their photographs. '

and they go on to say:

'With the access to so many images, via not only traditional print media, but CD-ROMS and the World Wide Web, together with the ease of copying images, manipulating and combining them with others, the rights of the copyright owners of these images are either forgotten in the excitement of the new technology, unknown due to ignorance or just ripped off because the chances of being caught are considered to be too remote.'

What now?

I am making no judgements (especially where people are using public domain art images but have taken the trouble to properly credit them and at least try to assign them the appropriate and correct copyright information) but I do think it's worth a proper debate about the situation, the future of art photography, its worth, the moral access to works of art and so on. I do believe that somewhere there is a useful middle ground that will come from further discussion and debate rather than everyone - online users, galleries, not-for-profit resources, picture libraries and so on - taking their own "position" without giving due consideration to the others.

I think all this is a more pressing issue in online publishing than waiting for the courts and legislators to decide. I believe we would do well to get involved in it as an online community. Writing about it here is my personal start. Voices welcome! If you're new to these issues, I recommend reading the following article regarding basic legal use of images from The Learning Centre at HubPages first, if you haven't already done so:

Who can make total sense of this issue, and the links down which Wikimedia sends us? I don't think it's possible. You don't have to read every word of the Commons pages linked to in the sections above to realise that. We're all missing out until there's a clearer way through. I think we need another Mark Ewbie to cheer us up.

So is The Mona Lisa Up for Grabs?

I would say, in strictest terms, that it's not. That's because legal protection of the images of the masterpiece, although this principal has been challenged successfully in the US, has not been overturned internationally. And it's an Italian painting, in a French gallery, in an international forum. This is not to express an opinion on whether or not I think international galleries should be more open with the photographs of their works, without any form of compensation. But I'm totally up for joining in the debate.

Thanks for your comment. Yes, it really is more difficult than it sounds at face value. If you have any specific questions, please feel free to ask. I'm not a lawyer, and never will be, but I am used to having to make judgement calls on copyright in professional situations, that I need to be able to justify. I do have faith that debating it now will help in some small way to clarify how we should all move forward as internet users and creators in the long run. For we Brits (well, this week at least! pending the independence vote!) it is truly not as free and open and experimental as the US courts have established so far, pending further cases that may sway the arguments in the future. Fortunately, I find it all quite interesting as well as confusing!

Namsak 3 years ago

All this illustrates what a mess copyright (especially on the web) is. How is any ordinary person (such as myself) supposed to get their head round the subject? I use many (supposedly) copyright-free images on various places but the information here suggests to me that I may have to think again.

Author

Keri Summers 4 years agofrom West of England

Thanks so much Suzette, I don't necessarily agree with the laws, but I do appreciate the galleries' point of view ... having said that I think that the rules are too strict and the prices too high. Many galleries, even in Europe where our laws are stricter, will let official educational institutions use their images, but the entry level fees for using images online commercially are often hundreds of pounds. That's fine if you're a big company using them on a website, but for online journalism it's nowhere near practical.

The next step would be to have in-copyright fine art - like Picasso, Warhol etc - also affordable for online use, with a tariff that broadly reflects the likely readership of the piece. In my opinion! And of course with the same rules applying internationally so we all know where we stand.

Suzette Walker 4 years agofrom Taos, NM

Again, another interesting point and article. You are a fine writer and you are right to make us question the use of images AND who photographed them. I love your use of Mark Ewbie's stick figure images and drawings. You make a good point here. This topic should definitely be part of the discourse. Voted up and shared!

Author

Keri Summers 4 years agofrom West of England

John Nagle and Tom Jefferson, thanks very much for your input. We are more restricted here in the UK, it's still genuinely "against the law" as I understand it to use a contemporary photograph of a public domain work without permission. If it were to go to court, of course, it would be interesting to see the outcome, as happened in the US.

What is good I think is that some galleries, most clearly with the National Gallery of Art in Washington, have pragmatically, and in the spirit of being a truly public resource, started to invite people to download high resolution images of their public domain works, and use them as they will. I hope that this continues.

Tom Jefferson 5 years ago

Here's a very new web site (started Oct. 2012) that has over 600,000 public domain images with more added on a regular basis. At the present time, it costs $10.00 per month; images are at a very good resolution; owner wanted to provide one place for people using PD images, so they wouldn't have to spend so much time searching numerous PD web sites for their needs.

Note the owner's comments; paraphrased here: There are no restrictions pertaining to the use of these images because they are all in the public domain.

Tom Jefferson 5 years ago

THANK YOU John Nagle! There's nothing "thorny" about any of it. Also it's nauseating how some web sites, be they commercial (for example those that sell posters of public domain images)or not, will slap "Copyright" across a public domain image, thereby claiming they own the image. There are numerous sites selling posters using public domain images. Duplicates are common and all of them claim a "Copyright." Some sites/blogs claim you can only use 5 or no more than 50 per year of a public domain image. If it's a public domain image, you can use it as often and for any purpose, freely or commercially, as you want. They belong to the public and no one has a right to restrict their use. If you don't like it, move to Iran.

John Nagle 5 years ago

In the US, Bridgeman vs. Corel is settled law - accurate photos of public domain flat images are not copyrightable. That was reaffirmed at the appeals level in Meshwerks vs. Totota, which extended this to 3D scans of solid objects. The museum community whines and threatens about this, but they lost. There have been no US copyright violation cases regarding pictures of public domain paintings since 1999.

Museums that make threats in this area should be reminded that making a false claim of copyright is a criminal offense in the US.

Author

Keri Summers 6 years agofrom West of England

Hi xstatic, a thorny issue indeed! It is time-consuming to be watertight on copyright, but I do think the situation will improve, and the information will become more clear. There's a sort of evolution going on here I think. Everyone says we have to be good about copyright, so "everyone" will have to do their bit to simplify it, I think. No wonder at the moment that HubPages suggests your own photos being the best thing. They're certainly the easiest in copyright terms!

I took a look at your "Apples" - great photos, and the University of Minnesota site was a real find - as you say very clear that they are happy for these to be re-used, and it was great that you credited them in your article too. I think crediting properly adds credibility (literally) to your writing as well. Exemplary use of pics!

Many thanks for your comment, I really appreciate people getting involved in this.

Jim Higgins 6 years agofrom Eugene, Oregon

Such a thorny issue! I am just beginning to write HUBS and have one sitting there ready because I am trying to figure out whether I can use some photos I blithely downloaded before really considering permission to use them. One I published on apples was done with photos we took and some from a University of Minnesota site that contained language allowing usage. Cartoons or art photos and others are great for illustration, but you can exhaust yourself looking for available images.

Thank you for a thoughtful contribution.

Author

Keri Summers 6 years agofrom West of England

Great to see you here, MT! I think the essence of creative commons is that people can choose to let others use the work they have made themselves, but what is happening is that people who don't own the copyright are making that decision about someone else's work. I always check, on the "commons" sites, even with a normal photo, if the actual author of the work is the person who uploaded it, and then I think it's fine. I know it's not good news, and I had mixed feelings about writing this, but it was overridden by a desire to "get it right" and help people sort out the misleading aspects of the information that is given. The truth is, no-one on HubPages as far as I can see is likely to get dragged to court anytime soon, but I also intend to write some positive Hubs on what can be definitely be used without ambiguity, and how, for example to find the cheapest picture libraries for those who are prepared to consider buying the files of fine art. I do think these fine art pics should be more easily, totally legally, available for online use and the sooner the better. Everyone is at liberty to ignore me too, you're pretty well buffered in the States, by laws to an extent, and public opinion, especially if using American artworks.

Also, this is pretty advanced stuff, it would be a great improvement if people at least, as you say, would stop seeing any online photo as "free game". Interesting about the quilts, which does sound like a confusing one as to where the line would be drawn. Thanks for your comment!

Shasta Matova 6 years agofrom USA

Copyright has always confused me, since I make quilts, and some people who sell quilt patterns get in an uproar when someone sells a quilt that was made with a pattern. I can see how the photograph can have a copyright, especially since the person may have had to make an expensive trip, had to buy the equipment, and gone through whatever it took to get the right angle to get the picture. Too many people think any photo on the internet is free game. I personally thought that any photo that was on the web with the creative commons license on it was available since someone had given permission, but now I know I'll have to look further.

Author

Keri Summers 6 years agofrom West of England

Hi Mark. Yes copyright is a nightmare, and it doesn't necessarily get easier the more you look into it. Must ... find ... a ... way ... through .. . In the meantime, it was great to be able to use your pics, especially as it's such a dour subject. Thank you!

VioletSun many thanks for your comment and votes. Because you're in the States, you're safer than we Brits, but if you want to err on the side of caution you might want to try US public domain artists, from US galleries, where the photographic files of them will have been taken on US soil. It's still a little contentious in some quarters, but Wiki Commons would say go ahead and do it, and it's one area where their opinion is based more on caselaw rather than what they feel the international laws should be. It's a difficult one because it becomes a moral issue (both ways) too, and how much you feel the galleries/picture agencies should be listened to.

CC thanks ever so for your comment. Wikipedia says a lot of things that are based more on opinion than on the facts as everyone (including international judges) sees them. I think it's an amazing institution, and I'm grateful to be able to make use of it myself, but the confident phrasing of those top pages starts to get more deconstructed as you look deeper in. I try to be as neutral as possible, it's not about what I think should or shouldn't be done (although I'm working up to that Hub, and others!) but if you want to send me a link to that work of art, I can do a little assessment for you if you like. I'm no expert, but I have been reading loads of this stuff and trying to take it on board. And I've seen people who put themselves forward as experts spout stuff that makes it clear they haven't really read the issues or taken them on board. Some of it beggars belief. Saying you disagree with British law and therefore are going to ignore it is one thing, saying that "British law is stupid" which I have seen argued in official places, is hardly a grown-up international debate is it? I'm getting a bit obsessed with it all as you can tell.

Cynthia Calhoun 6 years agofrom Western NC

Mark's images are the perfect touch to this hub. You've got me at "all ears" - I have used ONE photo of a work of art in my hubs and wikipedia said that it only needed proper credit. Yikes...now I'm biting my nails and considering taking that photo out...even if the copyright has been released. Great, useful hub.

VioletSun 6 years agofrom Oregon/ Name: Marie

This is in perfect timing! I have a fan page of inspirational quotes in Facebook that is growing.I was thinking of using art to match the quotes, but I am concerned about copyright laws. I need to print your article and read again!

Voted up, awesome and useful. :)

Mark Ewbie 6 years agofrom UK

Hi Keri. An interesting and timely article, given the popularity of Pinterest. Copyright law is one reason I just gave up and did my own thing - I couldn't get my head around it.